Antonio Robledo-Soto v. Loretta Lynch
Filing
Filed opinion of the court by Judge Posner. The Petition for Review is DISMISSED as moot. Richard A. Posner, Circuit Judge; Michael S. Kanne, Circuit Judge, concurring and Diane S. Sykes, Circuit Judge, concurring. [6810570-1] [6810570] [16-2954]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐2954
ANTONIO ROBLEDO‐SOTO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A201‐114‐801
____________________
SUBMITTED DECEMBER 9, 2016 — DECIDED JANUARY 10, 2017
____________________
Before POSNER, KANNE, and SYKES, Circuit Judges.
POSNER, Circuit Judge. Robledo‐Soto, the petitioner, a
Mexican citizen facing removal (deportation) to Mexico,
sought to postpone his removal proceeding so that he could
expunge a drunk‐driving conviction and if he succeeded in
doing that try to persuade the Department of Homeland Se‐
curity to drop its efforts to seek his removal. The Depart‐
ment’s Immigration and Customs Enforcement division
(ICE) prosecutes removal cases (technically removal cases
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are civil, realistically they are closer to being criminal); and if
ICE decides not to prosecute, the alien goes scot‐free. Al‐
though Robledo‐Soto’s drunk‐driving conviction had not
been the basis for the Department’s seeking to remove him—
the basis was that he’d entered the United States without be‐
ing authorized to do so, see 8 U.S.C. § 1182(a)(6)(A)(i)—it
did make him a priority for removal, and he hoped that if
the conviction was expunged from his record he could con‐
vince the Department to exercise its prosecutorial discretion
not to seek his removal. For what is true is that in recogni‐
tion of the limited resources of most government agencies,
the agencies are authorized to decide “whether agency re‐
sources are best spent on this violation or another, whether
the agency is likely to succeed if it acts, whether the particu‐
lar enforcement action requested best fits the agency’s over‐
all policies, and, indeed, whether the agency has enough re‐
sources to undertake the action at all.” Heckler v. Chaney, 470
U.S. 821, 831 (1985); see also Arizona v. United States, 132 S.
Ct. 2492, 2499 (2012); Shoba Sivaprasad Wadhia, “The Histo‐
ry of Prosecutorial Discretion in Immigration Law,” 64 Amer‐
ican University Law Review 1285, 1291–93 (2015).
Robledo‐Soto succeeded in getting his drunk‐driving
conviction expunged, brightening his prospects for a favor‐
able exercise of prosecutorial discretion—already bright, one
might have thought (erroneously, as we’re about to see), be‐
cause he’s the parent of three American citizen children
(aged 13, 9, and 7), and there is a process (though as we’re
about to see it has never been put into effect) called “De‐
ferred Action for Parents of Americans” (DAPA) that is in‐
tended to allow such a person to request the Department of
Homeland Security to “defer action” in his case. See Memo‐
randum from Jeh Charles Johnson, Secretary of the Depart‐
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ment of Homeland Security, to León Rodríguez, Director of
U.S. Citizenship and Immigration Services (USCIS), Nov. 20,
2014, www.dhs.gov/sites/default/files/publications/14_1120_
memo_deferred_action.pdf. (visited Jan. 10, 2017, as were
the other websites cited in this opinion). Secretary Johnson’s
memo directing the creation of DAPA followed upon, and
was doubtless inspired by, President Obama’s announce‐
ment in late 2014 that he planned to use presidential execu‐
tive powers to institute a variety of immigration reforms.
The reader needs to understand that asking for a favor‐
able exercise of prosecutorial discretion (i.e., DAPA relief) is
different from requesting either withholding or cancellation
of removal, which are oft‐invoked grounds for avoiding re‐
moval. Withholding of removal requires a showing that the
applicant is likely to face persecution if deported to his or
her country of origin, 8 C.F.R. § 208.16, and Robledo‐Soto
neither applied for withholding of removal nor has ever
claimed to fear persecution in Mexico. And cancellation of
removal requires the applicant to meet certain threshold re‐
quirements, 8 U.S.C. § 1229b, one of which is proof of
10 years of continuous physical presence in the United
States, § 1229b(b)(1)(A). Robledo‐Soto can prove only 9.5
years of such presence, so the immigration judge determined
that he is ineligible for cancellation of removal. Robledo‐Soto
acknowledges that he is ineligible for either withholding or
cancellation of removal—the former because he failed to ask
for it, the latter because he is ineligible for it.
That leaves him with his quest for deferred action by the
Department of Homeland Security, a quest that began with
his entreaty for a continuance to expunge his criminal rec‐
ord. The Supreme Court has defined and approved deferred
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action as a lawful exercise of the Executive Branch’s “discre‐
tion to abandon” a removal proceeding at any stage of the
proceeding. Reno v. American‐Arab Anti‐Discrimination Com‐
mittee, 525 U.S. 471, 483–84 (1999). But Robledo‐Soto faces a
serious obstacle. USCIS, the component of the Department
that deals with applications for immigration relief, has, be‐
cause of a preliminary injunction against its implementing
DAPA (which remember stands for “Deferred Action for
Parents of Americans”) upheld in Texas v. United States, 809
F.3d 134, 170–78 (5th Cir. 2015), has decided neither to im‐
plement DAPA nor accept applications for DAPA relief. As a
result there is no “deferred action” process for Robledo‐Soto
to invoke.
Now it’s true the Supreme Court granted certiorari in
Texas v. United States, but then deadlocked 4–4, see United
States v. Texas, 136 S. Ct. 2271 (2016) (per curiam), and as a
result the Fifth Circuit’s decision stands, though its sound‐
ness has been questioned. See, e.g., Unconstitutionality of
Obama’s Executive Actions on Immigration: Hearing Before the
House Committee on the Judiciary, 114th Cong., 1st Sess. 61,
72–74 (2015) (statement of Stephen H. Legomsky, Former
Chief Counsel of USCIS), https://judiciary.house.gov/wp‐
content/uploads/2016/02/114‐3_93526.pdf; Shoba Sivaprasad
Wadhia, “The Aftermath of United States v. Texas: Rediscov‐
ering Deferred Action,” Yale Journal on Regulation, Notice &
Comment (Aug. 10, 2016), http://yalejreg.com/nc/the‐after
math‐of‐united‐states‐v‐texas‐rediscovering‐deferred‐action‐
by‐shoba‐sivaprasad‐wadhia/. So rather than court contempt
of the Fifth Circuit’s injunction (which, as we said, stands
because of the decision of the Supreme Court not to overrule
it), DHS/USCIS has decided not to grant deferred action in
cases such as Robledo‐Soto’s.
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Oddly, between the Fifth Circuit’s decision in Texas v.
United States and the Supreme Court’s grant of certiorari,
Robledo‐Soto’s lawyer wrote the Department of Homeland
Security requesting U.S. Immigration and Customs En‐
forcement (ICE) “to review [his client’s] case and administra‐
tively close or terminate proceedings so that he can apply
with [he means ‘to’] USCIS for deferred action for parents [of
American citizen children].” But no one at present can apply
to USCIS for such relief with any hope of success, because of
its decision not to grant deferred action in cases such as this.
And there is no indication that Robledo‐Soto’s lawyer al‐
tered his request after learning (if he did learn) that USCIS
could give his client no relief.
It is conceivable that in the exercise of its prosecutorial
discretion DHS could simply drop its removal proceeding
against Robledo‐Soto. Remember that the reason that he re‐
quested a continuance was to give him time to expunge his
criminal record in the hope that the Department of Home‐
land Security would as a result look more favorably on his
plea for relief. Yet having succeeded in expunging his
drunk‐driving conviction and having informed DHS of his
newly clean record, he has not succeeded in dissuading the
Department from seeking his removal, because the Depart‐
ment is committed to the ruling by the Fifth Circuit in Texas
v. United States. That leaves us with no authority to grant
him any relief that will prevent his removal, and therefore
his petition for review is moot, see Qureshi v. Gonzalez, 442
F.3d 985, 988 (7th Cir. 2006)—and so it must be, and it here‐
by is, dismissed.
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No. 16‐2954
SYKES, Circuit Judge, with whom KANNE, Circuit Judge,
joins, concurring in the judgment. Antonio Robledo‐Soto, a
Mexican citizen, sought to postpone his removal proceed‐
ings so that he could obtain documents to expunge a drunk‐
driving conviction and thereby convince the Department of
Homeland Security to cease its effort to remove him. The
immigration judge concluded that there was no relief he
could grant and entered an order of removal, a decision up‐
held by the Board of Immigration Appeals.
Robledo‐Soto petitioned for review, arguing that the im‐
migration judge or the Board should have granted a contin‐
uance to allow time for him to expunge his conviction and
then ask DHS to favorably exercise its discretion not to re‐
move him. While his case has been pending in this court, his
expungement motion was granted. But DHS has determined
that although the drunk‐driving conviction has now been
expunged, it will not exercise its discretion to drop the case.
In light of that determination, the Department of Justice ar‐
gues that no meaningful relief can be ordered and the case is
moot. See Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir.
2006). Robledo‐Soto agrees. Accepting that concession, the
petition for review must be dismissed as moot.
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